18.09.2001. P2 TRUE COPY OF COMMISSION REPORT IN OS NO.1685/02. P3 TRUE COPY OF MEMO FILED BY COUNSEL FOR THE C.D.B. P4 TRUE COPY OF COMPLAINT DATED 18.04.2012. P5 TRUE COPY OF REPORT OF OMBUDSMAN DATED 30.06.12. P6 TRUE COPY OF ORDER DATED 12.09.2012. P7 TRUE COPY OF ORDER DATED 01.11.2012. P8 TRUE COPY OF ORDER NO.B.90/08 DATED 21.06.2013. P9 TRUE COPY OF ORDER DATED 13.10.14 IN DBP NO.138/12. P10 TRUE COPY OF ORDER F-1861/2015/K.DIS DATED 20.01.16. P11 TRUE COPY OF THANATHU REGISTER OF 3RD RESPONDENT. P12 TRUE COPY OF PHOTOGRAPH OF BUILDING CONSTRUCTION. RESPONDENTS' EXHIBITS:- EXT.R8(a) TRUE COPY OF THE DECREE IN O.S.9/57 ON THE FILE OF THE MUNSIFF'S COURT, ERNAKULAM. EXT.R8(b) TRUE COPY OF THE PATTA ISSUED BY THE LAND TRIBUNAL, ERNAKULAM. EXT.R8(c) TRUE COPY OF SALE DEED No.3121/08 S.R.O. MARADU DTD.22.10.08. EXT.R8(d) TRUE COPY OF THE REPORT & SKETCH ISSUED BY THE ADDL. TAHZILDAR, KANAYANNUR TALUK, ERNAKULAM. EXT.R6(a) TRUE COPY OF THE RELEASE No.1248/96 DTD.22.3.1996 OF THE SUB REGISTRY. EXT.R6(b) TRUE COPY OF THE PATTAYAM IN S.M.No.68/1997 DTD.11.12.97 ISSUED BY THE LAND TRIBUNAL, ERNAKULAM IN FAVOUR OF THE 7TH RESPONDENT. EXT.R6(c) TRUE COPY OF THE SKETCH PREPARED BY THE VILLAGE OFFICER, KUMBALAM. EXT.R6(d) TRUE COPY OF THE POSSESSION CERTIFICATE DTD.26.3.97 ISSUED BY THE VILLAGE OFFICER, KUMBALAM. EXT.R6(e) TRUE COPY OF THE JUDGMENT DTD.26.11.14 IN W.P.(C)No.31557/14 OF THIS COURT. TRUE COPY P.A.TO JUDGE [CASE REPORTABLE] P.R.RAMACHANDRA MENON & MARY JOSEPH, JJ.
------------------------------------------------------- W.P.(C)No.19661 of 2016
--------------------------------------------------------- Dated this the 01st day of February, 2018 JUDGMENT Ramachandra Menon, J. Ext.P10 order passed by the 2nd respondent herein (pursuant to Ext.P9 verdict passed by a Division Bench of this Court in D.B.P.No.138/2012 for finalising the statutory appeal in terms of the relevant provisions of The Kerala Land Conservancy Act, 1957) is under challenge. The basic question to be considered is whether the remand ordered by the 2 nd respondent after setting aside Ext.P8 order passed by the 4 th respondent, for not having obtained consent of the District Collector (allegedly as stipulated under Section 13A of The Kerala Survey and Boundaries Act, 1961) is correct or sustainable, more so when no such stipulation is seen from the said provision.
2. A brief description of the factual position is necessary, to have clarity as to the sequence of events and proceedings which resulted in Ext.P10. The petitioner is stated as an ardent devotee of Udayathumvathil Sree Krishna Swamy temple and was a member of the Temple Advisory Committee, whose tenure is admittedly W.P.(C)No.19661/2016 ..2.. over. He is aggrieved of the encroachment of the Devaswom property by the nearby inhabitants; particularly the respondents 6 to 11. It is stated that the encroachment on the Devaswom property was brought to the notice of the Authorities concerned; but no timely action was taken from any corner. In the said circumstances, the petitioner in O.P.No.2340/2001 had approached this Court (preferred by the Udayathumvathil Sree Krishna Swamy Temple Kshetra Kshema Samithi, joining hands with another person) which culminated in Ext.P1 judgment dated 18.9.2001, relegating the said petitioners to move the civil court. Pursuant to the said verdict, O.S.No.1685 of 2002 was filed before the civil court by the Devaswom Board and another. The Advocate Commissioner appointed by the Court (to cause the properties to be measured out based on relevant survey records and the 'Thanathu register' maintained by the Devaswom) inspected the properties and effected measurement with the assistance of the competent authority of the Survey/Revenue departments and Ext.P2 report, along with the sketch, was submitted; identifying as many as 'nine encroachments' over the property belonging to the Devaswom. However, in the due course, it was realized by the Devaswom that W.P.(C)No.19661/2016 ..3.. no suit was maintainable before the civil court (presumably by virtue of the bar under Section 20A of The Kerala Land Conservancy Act) and hence Ext.P3 memo was submitted by the learned Standing Counsel for permission to withdraw the suit without prejudice to pursue other appropriate remedies. It is stated that the suit was dismissed as withdrawn accordingly, granting the liberty as above.
3. Despite the lapse of six years, no further step was pursued by the Devaswom; which made the devotees to file a complaint before the Ombudsman for Travancore & Cochin Devaswoms, referring to actual facts and figures, as borne by Ext.P4. Pursuant to the said complaint, the Ombudsman visited the temple and submitted Ext.P5 report dated 30.6.2012 before this Court, which was the subject matter of consideration in D.B.P.No.138/2012. Paragraphs 3 and 4 of the said report are relevant and hence they are reproduced below:-
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